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Legislative Memo: In Opposition of an ACT to Amend the Penal and Executive Law

In May of this year the New York Court of Appeals struck down on constitutional grounds a state penal code provisions that prohibits communication made with the intent to “harass, annoy, threaten or alarm another person.”

The court found that this provision criminalized speech in a manner that violated the First Amendment, under both the federal Constitution and the Constitution of New York. Relying on well-established First Amendment jurisprudence, the court ruled that “[A]ny proscription of pure speech must be sharply limited to words which, by their utterance alone, [1:] inflict injury or [2:] tend naturally to evoke immediate violence or other breach of the peace.”

The proposed legislation is intended to restore the aggravated harassment provision, consistent with the Court of Appeals’ ruling in Golb. This legislation, however, will not withstand constitutional muster; legislators should oppose it unless it is amended to comport with constitutional principles and standards.

The legislation fails to comport with the Court of Appeals ruling in two important respects.

First: The legislation purports to criminalize communication that threatens to cause physical harm to another (what the Supreme Court has characterized as a “true threat”). However the amended law would retain from the existing statute the criminal intent to harass. The term “harass” lacks legal precision.

What’s more, this formulation creates vagueness as to the relation of intent to conduct. This imprecision will lead to the charging and prosecution of communication that does not constitute a true threat, and that is protected speech under the constitution.

Second: The bill prohibits the communication of a threat to the property of another person, or a threat to the property of a family member of another person. Courts have not held that mere communication of a threat to property is beyond the scope of constitutional protection, and that therefore such speech may be criminally prosecuted.

Making it a crime to communicate a threat to harm property all but invites unwarranted and unconstitutional arrest and prosecution. Extending the scope of the criminal prohibition to threats made to a person regarding the property of another person only exacerbates the problem.

The proposed law remains overbroad and unconstitutional.

The legislature should withdraw the bill until and unless further amended so as to comply with constitutional standards.

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